Manning v. Leavitt Co.

• Decision Date: 04 April 1939
• Citation: 5 A.2d 667
• Parties: MANNING v. LEAVITT CO.
• Court: New Hampshire Supreme Court

5 A.2d 667

MANNING

v. LEAVITT CO.

Supreme Court of New Hampshire. Hillsborough.

April 4, 1939.

[Copyrighted material omitted.]

Transferred from Superior Court, Hillsborough County; James, Judge.

Action on the case for negligence by Eleanor P. Manning against the Leavitt Company for disfigurement resulting from a permanent wave. There was a verdict for plaintiff, and defendant brings exceptions.

New trial.

Case, for negligence. Trial by jury resulted in a verdict for the plaintiff. The defendant seasonably moved (1) for a nonsuit, (2) for a directed verdict, and (3) that the verdict be set aside because it was against the law, the evidence and the weight of the evidence, and because it was excessive. All of these motions were denied, subject to the defendant's exceptions. The defendant also excepted to the admission and exclusion of evidence, to the refusal of the court to charge as requested, to the giving of certain instructions, and to the allowance of arguments by the plaintiff's counsel. The facts are stated in the opinion.

Paul J. Doyle and John J. O'Reilly, Jr., both of Manchester, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robert P. Booth, of Manchester, orally), for defendant.

PAGE, Justice.

The plaintiff's declaration alleged that the defendant, on March 21, 1935, owned, operated and maintained a beauty parlor in Manchester known as "Leavitt's Beauty Salon"; that on that day the plaintiff went to the Salon and asked for and received a treatment for her hair known as permanent waving; that the defendant, through its agents and servants, gave the treatment in such a negligent manner that the plaintiff's hair was burned and fell off; that in consequence she has suffered great mental anguish and deep mortification because of her disfigurement. The evidence tended to prove, besides the consequences alleged, that when the plaintiff's hair came out again the singeing resulted in its becoming coarse and grey.

The evidence failed to prove the allegation that the Salon was operated by the defendant or that her damages resulted from the negligence of any person who was in fact the defendant's servant. It is not disputed that the defendant conducted a department store, that it leased a portion of its premises to one Chierney for his use as a beauty parlor, that the defendant had no actual control over the Salon or its operations, that Chierney had full ownership and control of it, that he had sole authority over its instrumentalities and that all of the employees in the Salon were his servants and subject to no control by the defendant.

Among the devices used in the Salon was a machine for giving permanent waves. This applied heat to the hair by means of a current of electricity. There was a switch controlled by a clock which could be set in such manner that the electric current might be cut off after any determined time for the application of the heat. There was also another switch, controlled by the hand of the operative, who was supposed to stand by constantly during the treatment and consult her watch, so that if the automatic device failed she could cut off the current. The proper time for application of the heat varies from seven to fourteen minutes, according to the quality and condition of the hair to be treated. It could be found that the current was applied for a much longer time than fourteen minutes, with the result that the plaintiff suffered the injuries alleged and proved. It does not affirmatively appear whether the clock-switch was properly set. If it was not, the operative could be found to have been negligent. If it was, and the switch failed to operate, the operative could be found to have been negligent in failing to stand by continuously during the treatment and to check the time with her own watch.

The plaintiff was herself skilled in the process of permanent waving, had attended a school where it was taught, had operated a beauty parlor of her own, and was her own expert witness as to what due care required under the circumstances. During the time that she was in the chair, it occurred to her that the treatment was a long one. She was unable to see the clock, which was behind her, and had no means of knowing the time positively. She expressed her doubt to the operative, who said that different machines took different times, and completed the process. Under these circumstances reasonable men were not compelled to find that the plaintiff was guilty of negligence which contributed to her injuries, however close that question might be.

Though there was no evidence that any agent or servant of the defendant was guilty of negligence, it was suggested in brief and argument that the defendant might be liable as an invitor under the authority of Frear v. Manchester Traction L. & P. Company, 83 N.H. 64, 139 A. 86, 61 A.L.R. 1280. In the broad sense the invitation theory has no application to this case. Even if there were an invitation by the defendant, which is doubtful (Jackson v. Public Service Company, 86 N.H. 81, 163 A. 504), a lessor is liable for bodily harm to his invitee only when it results from an unsafe condition of the premises caused by negligence of the lessor. The negligence must be in the performance of a duty either to make the premises safe before delivery to the lessee, or to keep them safe while in the lessee's possession.

This plaintiff's injuries were not due to any want of care with respect to the condition of the premises. The duty of the invitor-lessor does not extend to matters having to do merely with the lessee's management or operation of premises which would be safe but for such management or operation, at least where the lessee is in sole actual control, as was true in this case. The fact that a fault of the lessee or his servant commonly concurs with the lessor's failure to see to the safety of the premises should not blind us to the basic principle, upon which the invitation cases rest, that the lessor in ordinary circumstances cannot be held for the lessee's fault, but solely for his own. Bernier v. Woodstock Agr. Society, 88 Conn. 558, 563, 564, 92 A. 160; Luhi v. Phoenix Lodge, 31 Hawaii 740, 746, 747; Wilson v. Norumbega Park Company, 275 Mass. 422, 424, 425, 176 N.E. 514; Knottnerus v. Company, 93 Mich. 348, 53 N.W. 529, 17 L.R.A. 726; Roark v. Electric Park Company, 209 Mo.App. 638, 241 S.W. 651; Gray v. Fox West Corporation, 93 Mont. 397, 405, 18 P.2d 797; Reisman v. Public Service Corporation, 82 N.J.L. 464, 81 A. 838, 38 L.R.A., N.S., 922; Roper v. Ulster County Society, 136 App.Div. 97, 120 N. Y.S. 644; Oles v. Columbia County Society, 236 App.Div. 569, 260 N.Y.S. 863, 865 (distinguishing cases of estoppel); Tulsa Entertainment Company v. Greenlees, 85 Okl. 113, 205 P. 179, 22 A.L.R. 602; Restatement, Torts, §§ 357-362, 419, 420; Sargent v. Stark, 12 N.H. 332; Scott v. Simons, 54 N.H. 426; Towne v. Thompson, 68 N.H. 317, 44 A. 492, 46 L.R.A. 748; Frear v. Manchester Traction L. & P. Company, supra.

The plaintiff testified, when asked how she happened to go to the Leavitt Store for service: "Leavitt's always advertised very extensively, and I saw their advertisement in a Manchester paper, and I thought it was a good store and I went there", which may be taken as a statement that she understood that the advertisement was inserted by the defendant. "The Court: They advertised extensively what? The Witness: Permanent waving." Immediately after her treatment the attendant gave her a card, which was in evidence. This card read: "Leavitt's Beauty Salon Leavitt's Dept. Store A Complete Beauty Service for Milady 2nd Floor Manchester, N. H."

The only other pertinent evidence bearing upon an estoppel came from the defendant's manager, who testified that Chierney, the lessee and operator of the Salon, did all of his own advertising, and the defendant had nothing to do with it beyond the fact that it permitted him to use the Leavitt name, whether as The Leavitt Company or as the Leavitt Beauty Shop the witness was uncertain. Chierney's shop, this witness testified, was connected by telephone through an extension of one of the instruments listed in the defendant's name, and entrance to the Salon was through the defendant's store and by means of the defendant's elevator.

It is to be taken as established that the defendant did not itself advertise the Salon as operated by it, but it could be found that the plaintiff was justified in believing that it did, and that such belief was based upon appearances actively permitted by the defendant. The court charged the jury as follows: "So if you find that the plaintiff saw the advertisement as she said she did and went there for a permanent wave, believing that she was dealing with the Leavitt Company, and that she sustained the injury claimed by reason of the negligence of one of Mr. Chierney's operators, then the Leavitt Company will be answerable in damages, provided the plaintiff herself was in the exercise of due care at the time she received the permanent wave." To this instruction the defendant excepted. If the charge was erroneous as a matter of law, there must be a new...